Weaponized Prorogation and the Harm to Democracy: Lessons from Canada

Ian Cooper (DCU Brexit Institute)

It is just over a month since the Conservative Prime Minister secured his place at the head of a minority government. Yet now he finds that the other parties in the House of Commons are working in combination to deliver a stinging parliamentary defeat that could bring down his premiership. In desperation, he asks the head of state to prorogue – i.e. suspend – parliament for several weeks. She accedes to his request, allowing him to evade the impending vote and thus save his political skin.

The above account may describe the actions taken last week by Boris Johnson and Queen Elizabeth II, who in turn asked for and granted the prorogation of the UK parliament. But it also describes the actions of the Canadian PM Stephen Harper and Governer-General Michaëlle Jean (not actually the head of state, but rather the Queen’s representative in Canada) in December 2008, when he brazenly asked her to prorogue the Canadian parliament at a moment when he faced an impending vote of no confidence, and she complied. Ten years before Johnson, it was Harper who demonstrated that prorogation could be weaponized.

In October 2008, Harper (who had been in power since January 2006) was re-elected at the head of a Conservative minority government. A controlling politician with little regard for the sanctity of democratic conventions – Harper was, in effect, his own Dominic Cummings – he seized an opportunity to hobble the opposition. His government immediately moved to eliminate subsidies for political parties, which would have disproportionately benefited his own donor-rich party at the others’ expense. Opposition parties began organizing to defeat the government in a vote of no confidence and to form an alternative coalition government. Harper’s response was to request prorogation.

Under normal circumstances, prorogation (in both the UK and Canada) is a routine event on the parliamentary calendar, marking the short break between the end of one session and the beginning of another, when there is a Queen’s Speech (“Speech from the Throne,” in Canada) setting out a new legislative agenda. The Governor-General does not have the full splendour of the monarch, but she nonetheless fulfills the same function in the Canadian constitutional system. By convention, the PM merely advises the Governor-General to prorogue, but she is generally regarded as duty-bound to follow his advice. She is supposed to retain the dignity of her office and remain impartial with respect to party politics. But if a ruthless PM is determined to prorogue parliament for purely political advantage, threatening both her dignity and her impartiality, she has little choice but to follow his advice anyway.

On the morning of 4 December 2008, Harper went to Rideau Hall, the residence of the Governor-General. Michaëlle Jean did not automatically accede to Harper’s request; she listened to him and consulted with constitutional experts for more than two hours, before finally proroguing parliament until January 26, 2009. By the time the parliament re-opened, the threat of a no-confidence vote had passed.

Harper’s gambit worked. In fact, it worked so well that he used the same trick to get himself out of trouble again just a year later. His purpose this time was to forestall a growing parliamentary investigation into the treatment of Afghan detainees, whom Canadian forces in Afghanistan had handed over to the local army and police despite knowing they would likely be tortured. On 30 December 2009, Harper again requested prorogation. On this occasion, he did not even pay a personal visit to the Governor-General, but telephoned instead. Parliament was then prorogued until 3 March 2010. This time, the move prompted considerable protest, with many demonstrations across the country. However, the controversy was overshadowed, first, by the catastrophic earthquake that struck Haiti in January – Canada has numerous Haitian immigrants, including Michaëlle Jean herself – and, second, by the Winter Olympics which took place in Vancouver in February.

The question at issue in the 2009-2010 prorogation (evasion of parliamentary scrutiny) was a less grave constitutional matter than that in the 2008-2009 case (avoidance of a vote of no confidence). However, the fact that Harper felt free to resort to the same tactic a second time within one year shows that he viewed it merely as a tool to be used for political advantage. After this, Harper never used prorogation as a weapon again, for the simple reason that he did not need to: he won a parliamentary majority in the 2011 general election. He remained in power until 2015, when his government was ousted by the Liberals of Justin Trudeau.

Prorogation is a powerful tool, and it is one that is subject to abuse. To determine whether it has been used illegitimately, one must look at the context. The most basic principle of parliamentary democracy is that the executive is accountable to the legislature. In Canada, this is known as “responsible government.” In both the UK and Canada, the government can only govern if it has the confidence of the parliament, and that confidence is expressed through a majority in the House of Commons. Confidence can be withdrawn at any time. Quite simply, if prorogation is used to allow the executive to evade parliamentary accountability, this is an abuse of power, a denial of parliamentary sovereignty, and it does palpable harm to democracy. This was the case in the two prorogations of the Canadian parliament discussed above, and it is equally the case in the current prorogation of the UK parliament.

It is plain that Boris Johnson’s purpose in proroguing the UK parliament for a period of weeks (starting between 9-12 September and ending 14 October) is to evade parliamentary accountability. Prior to today (3 September), since becoming Prime Minister, Johnson has been exposed to exactly one day of parliamentary scrutiny. He has not even been subjected to Prime Minister’s Questions yet. Moreover, it is equally plain that the prorogation is specifically intended to evade parliamentary scrutiny of how he intends to execute the most important policy initiative that the UK has faced in decades – Brexit – and to prevent the parliament from expressing its will with respect to that policy. This prorogation is designed to secure the possibility of a hard Brexit that Johnson knows that the legislature opposes. In context, this prorogation is not “normal,” as was recently claimed by the Leader of the House of Commons. Rather, it is a flagrant subversion of parliamentary democracy.

Ian Cooper is Research Fellow at the DCU Brexit Institute. Follow him on Twitter: @IanCooperEU